Why are contracts gibberish but legal briefs are eloquent? Back in May, Shamus Young wrote
Having signed my share of legal documents, I know how impenetrable legalese can get. I assumed court briefs – documents aimed specifically at lawyers and other experts – would be even more baffling than the mortgages and NDAs I’ve dealt with, which are ostensibly intended to be read and understood by laypeople. But as it turns out, some of this court stuff can get pretty informal and it’s not particularly dense with jargon.
Shamus’ “assumption” makes sense—legal briefs are written for experts, so why aren’t the full of jargon? And why are contracts—intended to be read by non-lawyers—so comparatively confusing?
I’ve been thinking a lot about the answer lately because, in an odd way, it sums up my blogging philosophy.
Am I making this up?
Before I explain why this difference exists, I guess I should prove that it does. Here, let me provide a couple of contrasting examples. Here’s a legal brief filed before the Supreme Court):
More than 100 years ago, the Supreme Court ruled that the protection of our Constitution reaches all people within the territory of the United States regardless of their citizenship. In Yick Wo v. Hopkins, the Court held that the Fourteenth Amendment’s pledges of due process and equal protection apply “to all persons within the territorial jurisdiction [of the United States],” explaining that “[t]he rights of petitioners . . . are not less because they are aliens.” That same year, in Wong Wing v. United States, the Court held that “all persons within the territory of the United States are entitled to the protection guaranteed by [the Fifth and Sixth Amendments],” stating that “even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty or property without due process of law.” Repeatedly since its decisions in Yick Wo and Wong Wing, the Supreme Court has treated aliens’ presence on U.S. territory as the touchstone of their constitutional rights.
That aliens have rights under our Constitution once they have come within the territory of the United States has become so firmly entrenched in U.S.constitutional jurisprudence that González cannot deny it. Instead, his entire argument is devoted to misdirecting the Court’s attention to an unremarkable proposition—that aliens outside the territory of the United States generally do not have constitutional rights—in hopes of distracting the Court from the real issue in this case. What is the real issue?
Whether INS agents such as González can, within the bounds of the Constitution, attack a nonresident alien on U.S. soil, arrest her without reason or provocation, and use excessive force in doing so.
The answer, of course, is no.
That’s pretty readable, right? And that’s directed at nine of the smartest, most capable people on the planet, none of whom would have any trouble understanding something really dense. And, of course, if they did have trouble, all of them have access to assistance from equally brilliant (and typically over-educated) law clerks.
Contrast that with the following sentence (!) from a consumer credit card agreement:
Your Finance Charge for any Billing Cycle will include the following components, the total of which constitutes your total Finance Charge for the Billing Cycle: (1) a Cash Advance Transaction Fee Finance Charge, imposed (i) on each Cash Advance transaction posted during a Billing Cycle, in an amount determined as provided in the accompanying Summary of Terms, and (ii) on each Promotional Check Transaction posted during a Billing Cycle, in an amount determined as provided in the accompanying Summary of Terms, unless a different amount is specified in the disclosures accompanying the Promotional Check offer, and (iii) on each Overdraft Protection transaction (if applicable to your Account), in an amount determined as provided in the accompanying Summary of Terms; and (2) Interest Charge amounts computed by applying the applicable Monthly Periodic Rate or Rates, determined as provided below under “Computing the Monthly Periodic Rates and corresponding Annual Percentage Rate”, to (i) your Average Daily Balance of Cash Advances (including new Cash Advances), and (ii) your Average Daily Balance of Purchases (including new Purchases), and (iii) your Average Daily Balance of Balance Transfers (including new Balance Transfers), and (iv) each Average Daily Balance of Special Advances (including new Special Advances) and your Average Daily Balance of Overdraft Advances (including new Overdraft Advances); and (3) a Balance Transfer Transaction Fee Finance Charge (if applicable to your Account), imposed on each Balance Transfer posted during a Billing Cycle, in an amount determined as provided in the accompanying Summary of Terms.
Good luck with that. And each of those capitalized terms refers back to a list of defined terms a few pages up.
Now, admittedly I’m cherry picking my examples pretty egregiously. That contract came from a list of the least readable credit-card contracts and the brief was described as one of the best ever by a leading legal writing expert. That said, the phenomenon I’m pointing to is real, even if these are extreme examples. Legal briefs really are far more readable than contracts, and that credit-card agreement wasn’t *that* far from a typical example.
And that’s not even getting into the issue of legal briefs that are intentionally written to target a non-lawyer audience. For example, the amicus brief filed on behalf of the humorist P.J. O’Rourke is pretty great.FN 1
If you’re with me this far, then you agree: we’ve got a real puzzle. Why are briefs so much more readable than contracts?
Being understood versus not being misunderstood
I believe that all the differences between legal briefs and contracts stem from a single source: briefs are written to be understood, while contracts are written to not be misunderstood. I realize that doesn’t make much sense. Bear with me a bit; we’ll get there, I promise.
To illustrate what I’m getting at, let’s take a stab at rewriting the contract provision above in something at least vaguely resembling English. How about this:
Every month, you may have to pay three different financing fees, if they’re applicable. First, if you got a cash advance, you’ll have to pay a cash-advance fee. Second, if you transferred a balance from a different credit card, you’ll have to pay a balance-transfer fee. Finally, if you don’t pay the full amount you owe every month, you’ll have to pay interest on the amount you owe, whether you owe it because of purchases, cash advances, or balance transfers.
Isn’t that a lot better? For one thing, it’s a third as long, and three times as many sentences. It’s still far from perfect, of course—the fees aren’t listed here, and it’s still wordier than we’d prefer. But, progress! It’s much easier to understand this way.
So, why wasn’t it written this way to begin with? Well, it’s (usually) not because the lawyer who wrote it was incompetent. And it’s (usually) not because they want to trick us into agreeing to something we don’t understand. No, it’s because they are optimizing for something other than our understanding. In fact, they’re not writing for us at all, at least not primarily.
They’re writing for the other lawyer. The lawyer that will come along later and say “you told my client that you’d charge ‘a’ cash-advance fee, but you’re actually charging two different cash-advance fees, depending on whether they get a regular cash advance or a promotional check cash advance. That’s fraud!” And then the first lawyer will have to admit that the contract isn’t entirely explicit about that, and then they’ll have to have a big argument about it (and maybe even a lawsuit).
Sure, the first lawyer will almost certainly win in the end, but the whole time they’ll be wishing that they had the unreadable version of the contract and could just say, “no, part 2(i) and 2(ii) explicitly discuss different fees in that situation.” If they can say that, then they win instantly and don’t have to waste their time (and their client’s money) fighting about it.
Knowing all that, the lawyer will just draft the first version of the contract to begin with. Sure, it makes it less readable for us, but they’re not writing it for us, they’re writing it to stop any lawsuit before it even gets started. They’re writing to cut off misunderstandings, to have something explicit to point to to say “no, the contract definitely didn’t mean that—it says so right there!” They’re writing to avoid misunderstandings, not to actively help us understand anything.
To be clear, there’s nothing wrong with the way these lawyers are writing. They’re probably doing their jobs just fine. They’re just aiming for something totally different than the brief-writers are aiming for. Those guys aren’t worried about someone coming along and nitpicking and using their words against them; instead, they’re focused on getting their point across as simply and convincingly as possible. And it sure shows.
Something, something … blogging!
I seem to recall that I said something about how this distinction between brief-writing and contract writing informs my blogging philosophy. And, next time, I’ll explain how.